789 F.2d 1173 (5th Cir. 1986), 84-1966, Ayres v. Sears, Roebuck & Co.

Docket Nº:84-1966.
Citation:789 F.2d 1173
Party Name:Joanne AYRES, et al., Plaintiffs-Appellants, v. SEARS, ROEBUCK & COMPANY, et al., Defendants-Appellees.
Case Date:May 19, 1986
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1173

789 F.2d 1173 (5th Cir. 1986)

Joanne AYRES, et al., Plaintiffs-Appellants,


SEARS, ROEBUCK & COMPANY, et al., Defendants-Appellees.

No. 84-1966.

United States Court of Appeals, Fifth Circuit

May 19, 1986

Ray Guy, Dallas, Tex., Vic Terry, Garland, Tex., Kirk B. Purcell, Houston, Tex., for plaintiffs-appellants.

Timothy E. Kelley, John W. Henvey, Dallas, Tex., for defendants-appellees.

Page 1174

Appeal from the United States District Court for the Northern District of Texas.

Before GARZA, POLITZ, and HILL, Circuit Judges.

POLITZ, Circuit Judge:

In this diversity jurisdiction, Texas products liability case involving a television set which was allegedly defective and the cause of a fire, the district court directed a verdict for the defendants at the close of plaintiffs' case-in-chief. Finding evidence of such quality and weight as to require submission of this case to the jury, we reverse and remand.


An August 1979 fire at the home of Joanne Ayres resulted in the death of her 74-year-old mother, Tomoko Ishibashi, and damaged her home and its contents. Joanne Ayres, individually and as administratrix of her mother's estate, her husband James, two siblings and, ultimately, her minor nephew, Takashi Namiki, filed suit for damages, invoking the Texas strict products liability provision and the Texas Deceptive Trade Practices--Consumer Protection Act (DTPA), Tex.Bus. & Comm.Code Secs. 17.41-.63.

Plaintiffs allege that the fire originated in a television set Joanne Ayres purchased from Sears, Roebuck & Company three and one-half years prior to the fire. Co-defendant Thomas International Corporation, the predecessor of defendant Warwick Electronics Incorporated, is a division of Whirlpool Corporation which allegedly marketed the set purchased by Ayres.

At the close of the plaintiffs' case-in-chief, the trial court granted defendants' motion for directed verdict under Fed.R.Civ.P. 50(a), expressing the opinion that the evidence presented, including the testimony of a seven-year-old eyewitness, a fire captain, and two expert witnesses, "was insufficient under Texas law to establish the existence of a defect when read in light of the Boeing Company against Shipman standard." The court went on to note that the mere fact of an accident was "insufficient as a matter of law to make a prima facie case for breach of implied warranty of fitness for a particular use." The claim for damages under the DTPA was rejected because counsel failed to ask Joanne Ayres where the set had been purchased. We disagree with the grant of a directed verdict. The essential inquiry is not whether the evidence established an actionable defect within the strict liability rubrics, an issue upon which we express no opinion, but whether the evidence fairly posed one of more jury questions. We are persuaded that it does.


That there was a serious fire in the Ayres home, damaging the home and its contents and causing the death of Mrs. Ayres's mother is not contested. Plaintiffs contend that the fire started in the television set in the den and then spread to the house. Defendants counter that the fire may have originated below the television set and been drawn into the set by the chimney effect of a vent-hole in the bottom of the television housing. That issue is obviously contested.

Included in plaintiffs' evidence was the testimony of a captain of the responding fire department who stated that the burn pattern in the den was a "V" with the point located at the television set. Also included was the testimony of young Takashi Namiki who was watching the television when sparks appeared at its rear. In addition, plaintiffs offered the testimony of two expert witnesses who expressed the opinion that the set was defective and was the probable cause of the tragic fire. Since verdict was directed at the close of plaintiffs' evidence, the only countervailing evidence was that produced by cross-examination of plaintiffs' witnesses.


The applicable standard of review in this case, for both the trial and appellate court, was set forth in Boeing Company v. Shipman,

Page 1175

11 F.2d 365 (5th Cir.1969) (en banc). In accordance with Boeing, "considering all of the evidence in the light and with all reasonable inferences most favorable to the party opposed to the motion, [we must determine whether] there is evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions." Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 176 (5th Cir.1985). See also Tubbs v. Campbell, 731 F.2d 1214 (5th Cir.1984). A jury question is presented if there is such evidence.

In making this determination we apply federal standards of review to assess "the sufficiency or the insufficiency of the evidence in relation to the verdict," Fairley v. American Hoist & Derrick Co., 640 F.2d 679, 681 (5th Cir.1981), but in doing so in a diversity case, we refer to state law for "the kind of evidence that must be produced to support a verdict," McCandless v. Beech Aircraft Corp., 779 F.2d 220, 223 (5th Cir.1985).


Nearly two decades ago, the Texas Supreme Court adopted Restatement (2d) of Torts Sec. 402A as its law governing products liability. McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787 (Tex.1967). This regime imposes strict liability on one who manufactures or distributes a product which proves to be defective. A plaintiff must establish that the defendant manufactured or marketed a defective product, that the defect rendered the product unreasonably dangerous for intended or reasonably foreseeable use, and that the defect caused the injury. Restatement (2d) of Torts Sec. 402A; Turner v. General Motors Corp., 584 S.W.2d 844 (Tex.1979); Henderson v. Ford Motor Co., 519 S.W.2d 87 (Tex.1974).

Proof of the defect and of the causative element may be established by direct or circumstantial evidence based on anecdotal or expert testimony. Kindred v. Con-Chem, Inc., 650 S.W.2d 61 (Tex.1983); Jack Roach Bissonnet, Inc. v. Puskar, 417...

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